Help

Introduction
One of the effects of stricter laws and policies directing police to treat
domestic violence as serious violent crime has been skyrocketing arrest rates
of women for domestic violence. In some police departments the percentage of
domestic violence arrests of females has shot up to 30 to 40 percent of the
arrests. What's most revealing about this massive shift toward arresting more
females is the fact that conviction rates for males vs. females remains
basically unchanged. Between 90 and 95 percent of domestic violence convictions
continue to be convictions of males. Or looking at it from another angle, a
study in San Diego found that in cases in which females were arrested for
domestic violence, only 6% of those cases resulted in prosecution.

What these and many other studies
strongly suggest is that the evidence in most female arrests is so flimsy or
non-existent that prosecutors can't justify filing charges, or even if the
prosecutor does file, the evidence doesn't stand up in court and the case is
quickly dismissed. Clearly, in a significant number of these cases, the
officers are mistakenly arresting the victim of domestic violence and not the
perpetrator. This is also the conclusion that we and many other victim
advocates around the country have come to in dealing with these cases on a day
by day basis. All too often, when women are arrested for domestic violence
you're dealing with a victim who has been mistakenly designated as a
perpetrator.

Women's advocates around the
country feel the skyrocketing arrests of females for domestic violence stems
from a combination of causes. In some cases outright officer hostility against
women, or officer resentment of having to treat domestic violence as serious
crime, motivates the arrest. In other cases officers are failing to properly
determine the dominant aggressor. In a common variation of this problem, the
officer fails to correctly identify defensive wounds and as a result they are
arresting women who defend themselves, especially those women who defend
themselves successfully. And in another whole set of cases, there are
indications that domestic violence perpetrators themselves have gotten
increasingly sophisticated at turning the law on women by doing such things as
calling 911 themselves or by purposely injuring themselves before police
arrive.

To be sure, there are cases in
which the arrest of a female for domestic violence is a legitimate arrest. But
the observations of victim advocates and studies around the country indicate
that in a high proportion of female arrests, it is a domestic violence victim
who has been mistakenly arrested. These victims need very special care and
advocacy from you in order to keep them safe and to undo the damage that's done
by a bad arrest.

How to
help a domestic violence victim who has been arrested for domestic
violence.

Victims of domestic
violence who get arrested are usually shattered emotionally, much more so than
domestic violence victims who have not been arrested. They need immense support
from you, her advocate. On top of the trauma of the domestic violence
itself, the injustice of the arrest is unbearable to most women. And worse, if
the woman has children, she is usually intensely fearful that the perpetrator
will use this arrest to go into family court and get custody of the children.
Unfortunately, she is often right, this is a likely scenario. All told, a
domestic violence victim who has been arrested is often in such a broken mental
state that she's unable to focus on the steps she must take to save
herself.

Because she is so
devastated, it's critical that you work as best you can to get her back on her
feet and back in the fight. Explain to your client about the soaring arrest
rates of women, and most important, explain about the high probability that the
case against her won't get filed, or even if it does get filed, there is a very
high likelihood the case will be dismissed.

Beyond that, give your
client any kind of pep talk you can come up with, because she's got a hard road
and sometimes a couple months ahead of her before the situation gets resolved.
In the end she's probably going to come out alright, but it's very, very hard
to convince her of this and to keep her from falling into despair. So keep
giving the pep talks.

Advise your client not
to talk to the police or prosecutors. The first instinct of many
domestic violence victims who are arrested is to go and talk to police. They
feel that if the police just hear the whole truth then the police will
straighten things out. This is extremely naive. Once a person is labeled a
suspect by police everything she says, can and will be used against
her. Once labeled a suspect, your client should not say another word
to police.

And in most cases, you,
as the victim's advocate shouldn't go to the police either. When you work on
behalf of someone who has been arrested, you are immediately in a very
different relationship with law enforcement than when you are working on behalf
of someone whom the police have identified as the victim. Unless you have
experience in this new role, you, too, can easily do and say things out of
habit of your role as a victim advocate that can and will be used against your
client. In addition, you should keep in mind that because your client has been
officially designated as suspect or defendant, she is not covered by the usual
victim/advocate client privilege.

Unless there are some
compelling circumstances, or unless you are experienced at working within this
very different set of boundaries, neither you nor your client should
communicate with police or prosecutors on the case.

As soon as possible,
get a good set of pictures taken of any injuries, even if your client tells you
that the arresting officer took pictures of her injuries. Many times,
once police make the decision to arrest the woman, they are not going to take
much care in gathering evidence that might disprove her guilt. So even if your
client tells you police took pictures of her injuries, you should get another
set of pictures as soon as possible. This is a priority because most injuries
will quickly disappear.

If at all possible, get
your public defender's office to take the pictures so as to maximize the value
of the pictures as evidence. If your client is in jail, have her make a formal
written request for pictures of her injuries or a formal written request for a
medical attendant who will document her injuries. If your client is in jail,
you should make follow-up phone calls to make sure the pictures actually got
taken.

Also, whether she's in
jail or not, you can make your own (additional) written and photographic
documentation of your client's injuries and of her story. Be aware that if and
when you do this you can be subject to subpoena if the case goes to trial.
Again, this is because your relationship with the client is not covered by the
usual victim/client privilege since your client is a now legally a suspect and
not a victim.

You or the victim
should call the district attorney's office receptionist to find out a as soon
as possible whether or not charges are being filed in her case, and if so, the
exact nature of charges filed.

If the district attorney rejects
the case, which is fairly common, your client can breathe a big sigh of relief.
That will be the end of the criminal case in virtually all cases. Still, she
should keep in mind that the district attorney does have a year in misdemeanor
cases and seven years in felony cases to reconsider filing the case. But again,
this doesn't happen very often.

It's also important to keep in
mind that even though criminal charges are not filed, there is still the family
court case to worry about. As we mentioned earlier, in all likelihood the real
perpetrator will take advantage of your client's arrest to push for custody or
other orders against your client in family court. And though his case in family
court won't be as strong as if the district attorney had filed charges, the
perpetrator can still use the arrest and accompanying police report to sway
proceedings in family court to his favor. We address this issue further
down.

If the district attorney does file charges against your client, have your
client ask for the penal code numbers of the charges that will be filed against
her, and have her get the date and time of her first court appearance.

If charges are being filed against your client, there are four key
elements to helping her.

Keep your client from falling
into despair.

Help her form a good working
relationship with her defense attorney.

Educate her to the purpose and
strategy of each court hearing.

Help her be a partner in
preparing her defense.

Note:
For the section that follows, we only cover the usual situation in which your
client has been charged with a misdemeanor. If your client has been charged
with a felony, you and she need to seek more expert help than we can provide
here.

Remind your client that
just because the district attorney filed charges against her it is not the end
of the world. If your client is in reality the victim of domestic
violence it's very likely that she can get the charges dismissed. But she's
going to have to hang in there, stay on her feet, and be willing to keep
fighting in order to effectively work the process. It can sometimes take many
months to get the case dismissed. In fact, putting on a waiting game with the
system is often the best strategy to that end.

Begin preparing your
client for that first court appearance which is called the
arraignment. If your client can afford a private criminal defense
attorney she should hire one as soon as possible. However, as you probably
already know, 99% of domestic violence victims who get arrested are not going
to have the money for a private attorney. They're going to have to rely on the
public defender. One other possibility is that you can get on the phone and try
to get an attorney to take the case pro bono. But the chances of getting a pro
bono attorney for a misdemeanor domestic violence case are poor. So for the
rest of this text we assume the victim will be relying on a public
defender.

Having to rely on a
public defender is also not the end of the world for your client. In
fact, the up side of having a public defender is that these attorneys are in
the court room every day handling exactly these kinds of cases. They know all
the players and they know all the routines to a tee. (In most instances, your
client will be assigned her public defender on the day of the
arraignment.)

However, the down side of having a
public defender, and what you and your client need to keep in mind, is that
public defenders are buried in cases. Most have so many new cases everyday they
need special carts to transport the case files to court.

Key to the success of your
client's defense is helping her form a good working relationship with her
defense attorney. This means:

1)

that your client is knowledgeable
about the purpose of each court hearing she attends,

2)

that's she's prepared with points
of information that will help the attorney in her defense, and,

3)

that in the short time she'll
have with her attorney, she is able to communicate effectively, professionally,
and without being hysterical or desperate, even though her circumstances
completely warrant these emotions. She also needs to know that it's very
unlikely that the public defender is going to have the time or resources to do
any but the most cursory investigation on her case. The more you can help the
client prepare for her own case the better.

Seven Steps to Prepare your Client for
the arraignment.

First, Explain the
purpose of the arraignment. There's no time your client is likely to
be more anxious than just before the arraignment. This is because she's still
in the acute phase of trauma from the violence and the arrest. And then on top
of that she's afraid that she's not at all prepared to go into court and defend
herself. So it's extremely important that your client understand that at the
arraignment there won't be any argument on the facts of the case and no
evidence will be presented one way or the other. The only official purpose of
the arraignment is to formally inform the defendant of the charges against her.
So she does not have to be nervous that she isn't yet prepared to defend
herself.

Also at the arraignment, in most
all cases, your client she will be assigned a defense attorney. And if the
defense attorney is present, she will be asked to enter a plea of 'guilty' or
'not guilty'. If she is not guilty she should plead 'not guilty' no matter how
sweet and tempting any promises may be. This is not the time to be considering
any deals.

Second, tell your
client the importance of bringing a calming friend who can accompany her to the
arraignment. If it's at all possible for you to accompany her to the
arraignment, there's probably no other hearing where you're presence can be
more beneficial. Your client needs to be calm. She needs orientation
to who's who on the courtroom stage. And she needs to be focused on the to-do
list you and she have prepared (see next paragraph). And following the calling
of her case, if the defense attorney isn't immediately pulled into another
case, it's very beneficial if you can introduce yourself to the defense
attorney and tell him or her that you're willing to help in your client's case.
If you can't be personally present at the arraignment, try to contact the
person who is going to accompany your client, and orient that person to the
above points.

Third, make a very
brief written list with your client of the things she needs to remember in the
minute or two she will have at the arraignment to communicate with her
attorney. The list should look like this:

Tell the attorney she is not
guilty and that she wants to plead "not guilty". (Remember, at the arraignment
there is no need to explain or to defend herself. But if she can handle a
little more complexity she should tell her attorney that she wants the case
dismissed because she is the victim of this domestic violence and not the
perpetrator.)

Tell the attorney she wants a
copy of the police report. (All defendants have a right to a copy o f the
police report on their case no matter what the crime and it is critical that
she obtain it. The police report is the evidence against her. She can't
possibly help prepare her defense without knowing what's in the police
report.)

Make specific arrangements with
the attorney as to exactly when and how she's going to get a copy of the police
report within the next day or two - no later.

Ask the attorney to write down
the names of the charges against her and to write down the date of the next
hearing.

If she's in jail or if she's out
on bail, tell the attorney she wants a bail reduction hearing. (This bail
reduction hearing will generally be scheduled for within the next couple days.
Write down the time and date of that hearing, too.)

Get a card with your attorney's
name and phone number.

Your client should take this list
(or whichever list you and she put together) to the arraignment with
her.

Fourth, explain to your
client that the arraignment is likely to be very rushed and that this meeting
with her public defender is likely to be very impersonal. So she's
going to have to step right up to the plate when her case is called and
establish very quick and businesslike communication with the attorney. That's a
tall order for a domestic violence victim who is scared to death. That's why if
you can go with her to the arraignment, this is the time she can most use your
presence.

Fifth, if by chance at
the arraignment the defense attorney does have a minute or two to talk with
your client off to the side, she should be prepared to give a brief summary of
what happened. (Remember, she will not be making this statement on the
record. This would just be a side conversation with the attorney.) In telling
the attorney what happened she should keep her remarks, as much as possible,
directed toward information that will help her attorney begin to think about a
defense. She should repeat that she is the victim of domestic violence and not
the perpetrator.

Sixth, BEWARE! Warn your client that there are some unprincipled
defense attorneys who might try to convince her to plead "guilty" at the
arraignment by saying something like this: "I know you want to get this over
with. And we can do that today if you would agree to just get a little
counseling. All you have to do now is plead "guilty" and you won't go to jail.
You'll just have to go to counseling once a week."

What the defense attorney does not
say is that the moment she pleads 'guilty', she will also have a conviction for
domestic violence on her record, a conviction that the perpetrator can, and
probably will, use against her in all kinds of ways for the rest of her life,
including getting custody of the children. AND, (in California) she will be on
formal probation for the next three years. Formal probation is also something
the perpetrator can easily use against her to get her rearrested for all kinds
of pretexts. Strongly advise your client to plead " not guilty" at the
arraignment, no matter how pretty a picture the defense attorney
paints.

Explain to her that the only
reason defense attorneys would suggest that she plead "guilty" at the
arraignment is to reduce their workloads and to be done with the case. It is a
highly unethical ploy. A defense attorney that pushes their client to plead
"guilty" at the arraignment is acting in the attorney's interest, and not in
the best interest of the client.

Seventh, If your client
doesn't speak English well, assure her that she will be assigned a highly
skilled court interpreter.

Helping Your
Client Prepare Her Defense

When your client gets the
police report, go over the police report with your client in every detail. Do
it more than once. And take notes. As you go through the police
report, keep detailed written notes on inaccuracies in the report and on
defense arguments that occur to you and the victim. Remember, if your client
has a public defender, in most cases the preparation of her defense will depend
heavily on her own efforts.

Remember also that in order to be found guilty, the prosecutor must prove
beyond a reasonable doubt that she committed the stated crime.

Though we can't list all
possible defenses, here are a couple things to guide your thinking about
productive defenses in your client's case:

Look (in the police report and in her memory)
for any form of evidence that contradicts the perpetrator's statement of what
happened. Any such evidence is usually enough to get the case dismissed because
it undermines the credibility of everything else the abuser has claimed. So
it's very important to read the perpetrator's statement in every detail. Since
your client is in reality the victim, the perpetrator's statement of what
happened is usually full of lies. As such, the perpetrator's statement also is
likely to have internal contradictions.

If you think about it
long enough, you can usually come up with one form of evidence or another that
will disprove the perpetrator's account. Consider witnesses, 911 tapes,
history, physical evidence, neighbors, children, contradictions or
impossibilities in the perpetrator's own statement, etc.. Sometimes the
evidence you need is right there in the police report and sometimes you have to
develop new evidence to disprove elements of the perpetrator's statement.

Look for officer mistake in determining the
Dominant Aggressor. Most all law enforcement domestic violence policies require
that officers responding to domestic violence determine who is the dominant
aggressor and who is the victim.

Here, according to the
California Penal Code, is a list of things that officers are mandated to
consider in determining who is the dominant aggressor:

Penal Code
Section 13701
Peace officers shall make reasonable efforts to identify the dominant
aggressor in any incident. The dominant aggressor is
the person determined to be the most significant, rather than the first,
aggressor. In identifying the dominant
aggressor, an officer shall consider the intent of the law to protect
victims of domestic violence from continuing abuse, the threats creating fear
of physical injury, the history of domestic violence between the persons
involved, and whether either person acted in self-defense.

Look for officer failure to recognize and identify defensive wounds.
When a person is physically attacked, one natural and common reaction is to
physically defend oneself or to fight back as a means of self-defense. These
reactions often result in characteristic wounds to the perpetrator or the
victim. For example, when a victim puts up her arms to defend against a blow,
there are frequently wounds to her arms. When a victim is being hit she
frequently reaches in to grab the attackers upper body or face, leaving
scratches on the perpetrator's upper body.

Unfortunately, we see too many
cases in which the woman is covered with bruises, but she has been arrested
because the man has a bleeding scratch on his face or chest. Look carefully at
the perpetrator's description of the attack and check carefully to see if the
wounds are consistent with the description.

Look for officer failure to
collect vital pieces of evidence or to interview witnesses. This occurs
frequently in cases where the officer is acting out of his own hostility
towards women or out of plain, old fashioned laziness. Ask your client a lot of
questions to help her think of additional evidence and witness statements that
may have been left out of the officer's report.

Gather as much evidence as
possible showing the history of abuse in the relationship.

Evaluate officer's response
(use these evaluation forms) to point
you to additional evidence that may have been missed or
misinterpreted.

Type up a summary list
of the main points you have come up with for her defense, starting with the
strongest point first. Have your client discuss these points with her attorney
at the earliest possible date. One of the rude awakenings for most
clients who have been arrested comes when they realize that the defense
attorney is not going to dig into her case like attorneys do on TV. Many times,
the attorneys don't even return their phone calls. In misdemeanor cases, many
defense attorneys don't have any contact with the defendant until the next
court hearing following the arraignment. This can make the client think that
her case his being thrown to the wolves - but that's generally not the
case.

Defense attorneys know that most
of these cases will end either in a dismissal or a plea and that there's almost
no chance these cases will go to a trial. So until they have a better idea
which way the case is going to go they generally don't get deeply involved in
the case. Nonetheless, it's worth having your client call her defense attorney
on the chance she may get in a discussion with her attorney before the next
hearing. The main purpose of the communication should be to inform the attorney
of the strongest defense points so the attorney can begin to use these points
to convince the DA to drop the case.

If a telephone conversation hasn't
been possible, your client should then be prepared to carry out this discussion
of her defense in the few minutes she'll have with her attorney at the
courthouse on the day of the hearing.

Because time with her attorney
under any circumstances will always be at a premium, your client should have
the list of her defense points with her whether she manages to talk with the
attorney on the phone or in the courtroom. She should also give a copy of this
list to her attorney.

Case Strategy.
Aside from the possibility of a bail reduction hearing, the next court hearing
following the arraignment is called a settlement hearing. If either your client
or the attorney have come up with a clearly convincing piece of evidence that
she didn't commit the crime, it's likely the defense attorney will present this
evidence to the prosecution and the prosecution will agree to dismiss the case.
Your client can go home free.

What usually happens, however, is
that even though your client has come up with a fairly good set of arguments in
her favor, the prosecution won't yet be willing to dismiss. In this situation,
a key point to keep in mind is that a primary interest of both the prosecution
and the defense attorney will be to avoid going to trial. In fact, the very
last thing the defense attorney, the prosecutor, or the judge wants to do at
any point is go to trial on a misdemeanor case.

Because the principal interest of
all the officials involved is to avoid a trial, they will each in their own way
push toward a settlement. This means that they will be pushing your client to
plead "guilty". If she doesn't plead "guilty"(and she shouldn't if she's not
guilty), the prosecutor may sweeten the deal, the defense attorney will up the
pressure on your client to settle, or the judge may set a date for another
settlement hearing. This process can be repeated over and over again. Each time
the officials hope that the defendant will get tired of the process and plead
"guilty" to the original charge or plead to a deal.

And each time the defense and
prosecutor will banter the case back and forth in informal discussions in the
hall trying to arrive at a deal that will be acceptable to the
client.

You've probably seen this process
hundreds of times from the other side when perpetrators won't plead "guilty" or
won't accept a deal and the case drags on and on. Only now your client is the
defendant and it's time for her to play the game. If she can hold up to the
pressure, and if she and her attorney have put together some good defense
points on her side, she should play the game out, continue to plead "not
guilty', and hope that the case eventually gets dismissed. Barring unusual
circumstances, your client doesn't lose anything by using this
strategy.

Of course, in playing this game
there is always the possibility that the officials will unexpectedly set the
case for trial. But that's ok, too. If the court sets a trial date, and your
client doesn't really want to go to trial, she can then just tell her attorney
that she'd like to accept the deal. Or she can go ahead with a trial. And even
after a trial date is set she can still ask for continuances. That's how a
smart defendant plays the game. By dragging out the process, she is putting
ever increasing pressure on the time-pressed officials to get rid of the case
one way or another, either by outright dismissal or by coming up with ever
sweeter deals.

For most domestic violence
victims, it's very, very hard for her to play this 'cool as a cucumber'
criminal role for months of time. And that's where you come in. If you and she
understand the game that's being played, more likely than not she can win and
get the case dismissed. So remind her before every court hearing that if she
wants to ultimately get the charge dismissed she must plead "not guilty", and
she must resist all the sweet talk of deals. Remind her that, in fact, since
she's not guilty, by all that's right in this world she should not be found
guilty of this crime.

Remind her that if by some chance
she loses, she is in no worse situation than if she had pleaded 'guilty' in the
first place.

At the same time, it's just as
important that you remind her that she can end the process at any time, in any
way she wishes, and you will support her. The exhaustion, stress, and
humiliation of the court process is often more than these clients can
bear.

If
the case goes to trial:
A misdemeanor trial is usually much shorter than a felony trial. So your client
needs to once again prepare for the reality that it's not going to be Also,
unlike the trials you may have attended with designated victims of domestic
violence or rape testify, as a defendant your client will be present in the
courtroom throughout the full duration of the trial.

Educate your client to the trial
process. This needs to be more in-depth than with victims who are going to
testify for the prosecution.

Help her keep a good working
relationship with her attorney, especially as trial time
approaches.

Help her organize people to be in
the courtroom for her, and who can be with her in the halls during the
recesses,

Help her prepare an organized
list of all the things she wants to remember during the trial.

Problems in Family Court for Victims Who Have Been
Arrested: Whether or not criminal charges are filed against
your client, it's very likely the perpetrator is going to springboard off her
arrest to harass her in family court. Most frequently the real abuser will
start by obtaining a restraining order against your client and by attempting to
gain custody of the children. Though this text doesn't deal with family court
advocacy, it's important to emphasize that, unfortunately, it is very likely
that your client's arrest will sway the family court decisions in favor of the
perpetrator. Your client is going to need as much help in family court as in
criminal court.

And though this section doesn't
cover family court advocacy, there is one thing you need to keep reminding her
to keep her from falling into total despair. Family court decisions don't have
the same finality as criminal court decisions. If family court initially gives
custody to her partner, she can keep going back to the court over time to get
the kids back. And if she wins in criminal court and gets her case dismissed,
she can go into family court and present much of the same defense she used in
criminal court to get the judge to take another look - often with ultimate
success.